S.M.B. v. K.R.B., (1997) 32 O.T.C. 161 (GD)

• Judge: Steinberg, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: Friday July 25, 1997
• Jurisdiction: Ontario
• Citations: (1997), 32 O.T.C. 161 (GD)

S.M.B. v. K.R.B. (1997), 32 O.T.C. 161 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. AU.038

S.M.B. (applicant) v. K.R.B. (respondent)

(Barrie Registry No. F178-96)

Indexed As: S.M.B. v. K.R.B.

Ontario Court of Justice

General Division

Family Law Branch

Barrie

Steinberg, J.

July 25, 1997.

Summary:

A couple married in 1967. During the marriage the husband developed a successful business. The wife worked for the business and was responsible for the home and their two children. Their marriage was very tumultuous. Both parties engaged in affairs and there were numerous separations. The husband was physically and emotionally abusive towards the wife. In 1987, the couple executed a marriage contract. The contract was one-sided in favour of the husband. The wife renounced her right to an equal share of the husband's estate (estimated between $1.5 and 2 million), spousal support and agreed to the designation of a shack as the matrimonial home. The wife had obtained independent legal advise. The wife displayed symptoms of "battered woman's syndrome" and was very dependant on the husband. She claimed that she thought that she had to sign the agreement to keep the marriage together. The couple separated in November 1995. The wife sought to have the marriage contract set aside. The wife claimed that the contract was unconscionable and that she was subjected to undue influence by the husband.

The Ontario Court (General Division), Family Law Branch, set aside the marriage contract, holding that it was unconscionable and that the wife signed the contract as a result of undue influence from the husband.

Estoppel - Topic 1389

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - Lack of prejudice to person raising estoppel - See paragraphs 53 to 57.

Family Law - Topic 634

Husband and wife - Marital property - Matrimonial home - What constitutes - Where two or more homes - See paragraph 48.

Family Law - Topic 3386

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Unconscionable bargain - See paragraphs 15 to 45.

Family Law - Topic 3388

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Duress or undue influence - See paragraphs 46 to 47.

Cases Noticed:

Morrison v. Coast Finance Ltd. (1965), 54 W.W.R.(N.S.) 257; 55 D.L.R.(2d) 710 (B.C.C.A.), refd to. [para. 6].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449; [1992] 4 W.W.R. 577; 12 C.C.L.T.(2d) 1; 68 B.C.L.R.(2d) 29, refd to. [para. 7].

Mundinger v. Mundinger, [1969] 1 O.R. 606; 3 D.L.R.(3d) 338 (C.A.), refd to. [para. 8].

Black v. Wilcox (1976), 12 O.R.(2d) 759; 70 D.L.R.(3d) 192 (C.A.), refd to. [para. 9].

Waters v. Donnelly (1884), 9 O.R. 391 (C.A.), refd to. [para. 10].

Slator v. Nolan (1876), Ir. R. 11 Eq. 367, refd to. [para. 11].

Bank of Montreal v. Stuart, [1911] A.C. 120; 80 L.J.P.C. 75; 103 L.T. 641; 27 T.L.R. 117 (P.C.), refd to. [para. 12].

Domenco v. Domenco and Ignat (1963), 44 W.W.R.(N.S.) 549; 41 D.L.R.(2d) 267 (Man. Q.B.), refd to. [para. 12].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211; [1991] 5 W.W.R. 389; 80 Alta. L.R.(2d) 293; 42 E.T.R. 97, refd to. [para. 12].

Mercer v. Mercer (1978), 5 R.F.L.(2d) 224 (Ont. H.C.), refd to. [para. 15].

Newby v. Newby (1986), 56 O.R.(2d) 483 (H.C.), refd to. [para. 17].

Revell v. Litwin Construction (1993) Ltd. et al. (1991), 6 B.C.A.C. 243; 13 W.A.C. 243; 62 B.C.L.R.(2d) 328; 86 D.L.R.(4th) 169 (C.A.), refd to. [para. 54].

Bowen v. O'Brian Financial Corp. - see Revell v. Litwin Construction (1993) Ltd. et al.

Taylor Fashions Ltd. v. Liverpool Victoria Friendly Society; Old Campbell v. Same, [1981] 1 Q.B. 133; [1981] 1 All E.R. 897; [1981] 2 W.L.R. 576 (Ch. Div.), refd to. [para. 54].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 33(4)(a) [para. 49]; sect. 56(4) [para. 5].

Family Law Act, S.O. 1986, c. 4, preamble [para. 19].

Authors and Works Noticed:

Cheshire, Geoffrey Chevalier, and Fifoot, Cecil Herbert Stuart, Law of Contract (9th Ed. 1976), pp. 289, 290 [para. 13].

Counsel:

Nancy M. Mossip, for the applicant;

Maxine M. Kerr, for the respondent.

This case was heard in Barrie, Ontario, by Steinberg, J., of the Ontario Court (General Division), Family Law Branch, who released the following judgment on July 25, 1997.